The U.S. Supreme Court on Wednesday will hear a South Carolina case that could have national implications for indigent parents facing jail time for failing to pay child support – and for taxpayers who might have to foot their legal bills.
At issue in Michael D. Turner v. Rebecca L. Rogers et al, which The Nerve first reported on last year, is whether Turner, who was jailed for a year for failing to pay nearly $6,000 in back child support, should have been allowed to have a court-appointed attorney represent him in his civil contempt hearing in Oconee County in 2008.
Turner, who represented himself, contends in court papers that he was entitled to an attorney.
Turner’s supporters include the U.S. government and 13 national or state legal organizations. Those who oppose his position include the state’s two Republican U.S. senators, Lindsey Graham and Jim DeMint; and 13 state attorneys general, including S.C. Attorney General Alan Wilson.
Under prior U.S. Supreme Court rulings, indigent criminal defendants have a right to court-appointed attorneys, who typically are paid with tax dollars. But the nation’s top court hasn’t granted similar sweeping rights in civil proceedings that could result in jail time.
“It doesn’t help anyone by throwing someone in jail and throwing away the keys,” said Greenville lawyer Derek Enderlin, who is among a group of attorneys representing Turner on appeal, about his client’s situation when contacted last week by The Nerve.
At any given time in South Carolina, there are about 1,500 people in jail for non-payment of child support, the vast majority of whom were sentenced for civil contempt, according to research in 2005 and 2009 by Elizabeth “Libba” Patterson, a University of South Carolina law professor and former director of the S.C. Department of Social Services who co-authored a friend-of-the-court brief supporting Turner.
An attorney for the U.S. government will argue Wednesday before the high court’s nine justices that Turner’s rights were violated because Oconee County Family Court Judge Timothy Cain – now a nominee for a U.S. District Court seat in South Carolina – didn’t question Turner enough in the 2008 hearing about his indigent status before sentencing him to a year in jail, according to court filings.
The U.S. Office of the Solicitor General, however, also will argue, according to its written brief submitted to the Supreme Court, that Turner and others in his situation don’t have a “categorical due process right to appointed counsel in civil contempt proceedings where confinement is imposed.”
Given their past practices, the justices are expected to rule on the case before the end of June, though they are under no legal deadline.
Having an appeal accepted by the top court is a rare legal feat: Out of about 10,000 petitions that the justices receive annually, only about 100 are heard during a term, which typically starts in October.
The S.C. Supreme Court unanimously ruled last March that indigent parents don’t have the right to an appointed attorney in civil contempt hearings. Turner appealed to the U.S. Supreme Court.
In his legal brief for Wednesday’s oral arguments, which was filed on Jan. 4, Turner said he is “presently in jail again for failure to pay child support.” He already had served a 12-month jail term that is the subject of his appeal.
Turner contends in court papers that because he didn’t an attorney, he was “left to defend himself (to no avail) and was jailed, in effect, for being too poor to pay.”
His lead attorney in Wednesday’s hearing is Seth Waxman of Washington, D.C., a former U.S. solicitor general appointed by then-President Bill Clinton and who held that position from 1997 to 2001. The solicitor general represents the United States in appeals before the U.S. Supreme Court, arguing the government’s position.
Another D.C. attorney, Stephen Kinnaird, one of the appellate attorneys for Rogers (formerly Rebecca Price), declined comment when contacted last week by The Nerve, referring questions to lead attorney Stephanos Bibas of the University of Pennsylvania Law School Supreme Court Clinic, who could not be reached for comment.
South Carolina is one of only five states in the nation – along with Georgia, Florida, Maine and Ohio – that don’t guarantee indigent parents who owe child support the right to an attorney in civil contempt hearings that can result in jail time, according to Turner’s U.S. Supreme Court petition.
That situation can lead to “de facto debtors’ prisons for child-support obligors who genuinely cannot pay,” Turner said in court papers.
Turner is supported in seven friend-of-the-court legal briefs submitted by the U.S. government and 13 national and state legal organizations, including: the American Bar Association, American Civil Liberties Union, National Association of Criminal Defense Lawyers, National Legal Aid and Defender Association, National Law Center on Homelessness and Poverty, and the S.C. Appleseed Legal Justice Center in Columbia.
Those organizations generally take the position that Turner and others similarly situated have a right to an attorney in civil contempt hearings.
“Where an indigent defendant faces incarceration for contempt of court, the potential deprivation of the defendant’s liberty interest warrants the appointment of counsel – regardless of whether the proceeding is labeled ‘civil’ or ‘criminal,’” the ABA said in its legal brief. “The line between civil and criminal contempt proceedings has become increasingly blurred, and thus cannot provide a useful basis for determining the right to counsel where personal liberty is at stake.”
In their legal brief supporting Rogers, Graham and DeMint contend that Turner has “consistently refused to honor his child support obligations,” and “now asks the Court – on behalf of delinquent parents everywhere – to overturn a century of settled precedent and establish a broad new entitlement to state-funded counsel whenever a civil litigant faces the prospect of detention for civil contempt.”
The senators also argue in court papers that requiring court-appointed lawyers for parents who owe child support would “shatter the fundamental parity between the parties that underlies the civil system,” noting that the custodial parents – typically mothers – often represent themselves in court, known as “pro se litigants.”
“If (Turner) prevails, custodial parents will not only have to fend for themselves in court, but they will be forced to litigate against state-funded lawyers,” the senators said.
Graham is a former law partner of Judge Cain who supported Cain for a U.S. District seat in South Carolina. President Barack Obama last month nominated Cain for the seat; Cain still has to be screened by the Senate Judiciary Committee, of which Graham is a member, and confirmed by the full Senate.
Graham and DeMint were joined in their legal brief by fellow Republican U.S. senators Marco Rubio of Florida and Mike Johanns of Nebraska.
Wilson and the other attorneys general contend in their legal brief that Turner “cannot escape the text of the Sixth Amendment, which guarantees the right to counsel only in ‘criminal prosecutions.’”
They also argue that South Carolina has “chosen to establish a relaxed system of procedural rules in its family courts that are easily navigable by pro se litigants,” and that the U.S. Constitution allows states to “structure their family courts in this manner without requiring them to formalize proceedings with the provision of appointed counsel.”
Cain in 2008 ordered Turner to serve one year in jail after he was found in civil contempt for failing to pay $5,728.76 in child support. Turner’s daughter was born to Turner, then 19, and Rogers, then 17, in 1996, court records show. Turner was ordered in 2003 to begin making weekly support payments of $51.73.
Rogers and her father, Larry E. Price Sr., who now has custody of the girl, said in court papers that before the 2008 family court hearing, that Turner had been found in civil contempt five previous times for failure to pay court-ordered child support.
In four of those instances, support payments were made after the threat of a 90-day jail sentence; during those years, Turner found construction and automotive jobs, though he didn’t hold onto them, according to their legal brief.
As of last December, Turner owed nearly $14,000 in back child support and had not made regular payments since his wages were withheld in 2005, Rogers said in court papers.
At the 2008 hearing, Turner told Cain that he couldn’t work because of drug addictions and a physical injury. Cain never informed Turner, who represented himself in the proceeding, of his right to an attorney or made a finding on his indigent status, Turner contends in court papers.
The S.C. Supreme Court in its March ruling last year said unlike a criminal contempt charge, a person jailed for civil contempt is “said to hold the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do.”
But critics of the ruling say that indigent defendants typically are unable to pay their arrears after being jailed, and that holding them behind bars only exacerbates the problem.
Turner’s more recent child support payments have been due to the S.C. Department of Social Services after Rogers, who had been receiving welfare payments, assigned her collection rights to the agency, according to court papers.
Citing statistics from the U.S. Office of Child Support Enforcement, Patterson, the former S.C. DSS director, said in court papers that 70 percent of all arrears due to the government as reimbursement for welfare payments are owed by noncustodial parents with no quarterly earnings or annual incomes of less than $10,000.
In 2007 in the United States, noncustodial parents owed $34.1 billion in child support to 6.4 million custodial parents, with noncustodial parents paying less than two-thirds of what they owed and 1.5 million custodial parents receiving no payments, Rogers, citing U.S. Census Bureau data, said in her legal brief.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org